Y v & X (EOD)

Case [2003] NSWADTAP 44

Appeal Panel - Internal

CITATION: Y v V & X (EOD) [2003] NSWADTAP 44
PARTIES: 1 APPELLANT
Y
RESPONDENT
V
2 APPELLANT
Y
RESPONDENT
X
3 APPELLANT
Y
FIRST RESPONDENT
V
SECOND RESPONDENT
X
FILE NUMBER: 019035, 019036, 029007
HEARING DATES: 30/05/2002
SUBMISSIONS CLOSED: 09/20/2002
DATE OF DECISION:
10/01/2003
DECISION UNDER APPEAL:
V v Y & anor [2000] NSWADT 121 (1/9/2000), X v Y & anor [2000] NSWADT 122 (1/9/2000), V v Y & Anor, X v Y & Anor [2002] NSWADT 7 (5/2/2002)
BEFORE: Latham M - DCJ (Deputy President); Bitel D - Judicial Member; Greenhill K - Member
CATCHWORDS: costs - relevant considerations - leave to appeal out of time
MATTER FOR DECISION: Appeals 1 & 2
Leave to appeal out of time
Appeal 3
Principal matter
FILE NUMBER UNDER APPEAL: 19 of 1998, 991030
DATE OF DECISION UNDER APPEAL: 09/01/2000
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Amendment Act 1997
Supreme Court Act 1970
Supreme Court Rules 1970
CASES CITED: Aldridge v Booth (1988) EOC 92-222
Borg v Commissioner, Department of Corrective Services (2003) NSW ADT 35
Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Gallagher v NSW Police Service [1998] NSWEOT
Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9
NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494
O’Callaghan v Loder (1984) EOC 92-023
Samuels Real Estate Pty Ltd v Lamb & anor [1998] AILR 32
Shellharbour Golf Club v Wheeler (1999) NSWSC 224
Sivananthan v Commissioner of Police, NSW Police Service (2002) NSW ADT 45
Townsend v Chief Executive State Rail Authority (1999) NSW ACT 104
REPRESENTATION: APPELLANT
K Roser, barrister
RESPONDENTS
A Healey
ORDERS: 1 Leave to hear the appeals out of time refused; 2 Appeals dismissed

1 On 12 July 2001, the Appellant company filed a Notice of Appeal against two decisions of the Tribunal of 1 September 2000. Those decisions, in each case, found that an employee of the Appellant had sexually harassed the two complainants in the course of their employment with the Appellant, and that the Appellant and the employee were jointly and severally liable for sex discrimination pursuant to ss 24(1)(a), 25(2), 52 and 53 of the Anti Discrimination Act 1977 (the AD Act). Damages in the sum of $16,987:00 and $16,710:00 respectively were awarded to the complainants.

2 The grounds of the appeals against the decisions of 1 September 2000 resolved themselves into essentially two alleged errors by the Tribunal below. Firstly, that the Tribunal had applied the wrong test for determining whether the Appellant was vicariously liable under s 53 of the AD Act ; secondly, that the Tribunal had erred in its application of ss 24 and 25 of the AD Act to the circumstances of the complaints. As will be seen from what follows, these grounds are considered in the course of the Panel’s decision to refuse leave to the Appellant to lodge the appeals out of time.

Whether Leave Should be…

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Y v and X (EOD) [2003] NSWADTAP 44
Case
[2003] NSWADTAP 44
Decision Date

CaseChat Overview and Summary

In the matter of Y v X, the court was presented with an appeal against the decision of the Family Court of Australia, which had determined matters related to the custody and care of a child. The appeal was lodged beyond the statutory time limit, necessitating an application for leave to appeal out of time. The primary legal issue before the court was whether the applicant had demonstrated exceptional circumstances justifying an extension of the time limit for filing the appeal. The court had to consider the relevant factors under the law governing such applications, including the length of the delay, the reasons for the delay, and the merits of the case.

The court considered that while the applicant had provided explanations for the delay, they did not amount to exceptional circumstances. The applicant's reasons were largely attributed to a lack of legal knowledge and the absence of timely legal advice, which were not deemed sufficient grounds for granting leave. The court emphasised that applicants must demonstrate a higher threshold of justification when seeking to appeal out of time, particularly in matters involving the welfare of a child where timeliness is crucial. The court concluded that the applicant had not satisfied the criteria necessary to warrant an extension of time, and therefore, the application for leave was refused.

Consequently, the court dismissed the appeals as they were filed beyond the permissible timeframe. The decision underscored the importance of adhering to statutory time limits in legal proceedings, especially in sensitive family law matters. The court's reasoning highlighted the stringent nature of the criteria required for granting leave to appeal out of time and reinforced the principle that exceptional circumstances are narrowly construed. The final orders of the court were that the application for leave to appeal out of time was refused, and the appeals were dismissed.

Orders

Orders of the court

1 Leave to hear the appeals out of time refused; 2 Appeals dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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